#fakhoury

Amer Fakhoury helped Israel run Khiam prison, where torture and murder took place. — Read on electronicintifada.net/blogs/ali-abunimah/us-airlifts-accused-torturer-israel-out-beirut

The license requirement for dissemination of information does not apply if it falls under one or more of the following exclusions:

Public Domain (ITAR, EAR)

22 CFR Ch.1 § 120.11

    http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

[However, note that the U.S. government has nonetheless attempted to prosecute dissemination of control-list technology, even though the information was shown to have been available on the internet.]

15 CFR Ch. 7  § 734.3 (b)(3) http://www.access.gpo.gov/bis/ear/pdf/734.pdf  

Education Exclusion  (ITAR,EAR)

22 CFR Ch.1 § 120.10(a)(5) http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

15 CFR Ch.7 § 734.9 http://www.access.gpo.gov/bis/ear/pdf/734.pdf  

No license is required to share with foreign nationals “information concerning general scientific, mathematical or engineering principles commonly taught in universities or information in the public domain”

Fundamental Research  Exclusion (ITAR, EAR)

22 CFR Ch.1 § 120.11(a)(8) http://www.pmdtc.org/docs/ITAR/2005/22cfr120_Part_120.pdf

15 CFR Ch. 7  § 734.8 http://www.access.gpo.gov/bis/ear/pdf/734.pdf

No license is required to disclose to foreign nationals information which is “published and which is generally accessible or available to the public [through, for example] fundamental research in science and engineering at universities where the resulting information is ordinarily published and shared broadly in the scientific community.”

  Other expressed restrictions in ITAR/EAR, and other federal regulations, to providing services to foreign nationals.

  ITAR and EAR prohibit assisting and training foreign nationals anywhere in the design, development, use, testing, etc. of controlled dual-use equipment without a license from Commerce or State.  An example given is in the operation of microbial culture fermenters having a capacity of 20 liters or more.

Furthermore, the technology transfer need not be in the course of a direct commercial relationship.  Technology or code is considered "released" for export when it is "available to foreign nationals for visual inspection (such as reading technical specifications, plans, blueprints, etc.); when technology is exchanged orally; or when technology is made available by practice or application under the guidance of persons with knowledge of the technology."

In addition, while there is a general license exception in the EAR 774, Note 2, for “General Software”, a prohibition remains in place for export to certain enumerated embargoed countries and for certain types of software.  That Note, PDF, states: [also, see, Section 2B]

(“mass market” software) is available to all destinations, except countries in Country Group E:1 of Supplement No. 1 to part 740 of the EAR, for release of software that is generally available to the public by being:

a. Sold from stock at retail selling points, without restriction, by means of:

1. Over the counter transactions;

2. Mail order transactions;

3. Electronic transactions; or

4. Telephone call transactions; and

b. Designed for installation by the user without further substantial support by the supplier.

Note: The General Software Note does not apply to "software" controlled by Category 5 part 2 ("Information Security"). For "software" controlled by Category 5, part 2, see Supplement No. 1 to part 774, Category 5, part 2, Note 3 Cryptography

Note. Export Administration Regulations July 30, 2004

 There are limited exceptions on export and transfer of certain types of knowledge, data, and technology, such as for universities that teach foreign students fundamental research techniques or scientific knowledge that is in the public domain.

 Note: however, there are no expressed exclusions that allow foreign persons to use controlled equipment or software without a license.   Some universities rely upon the Fundamental Research exclusion [see below] on the ground that using equipment is part and parcel of conducting fundamental research and/or the Education exclusion when the program of instruction requires using such software or equipment, but it is unlikely that such exclusions will extend more generally to commercial software development firms or other commercial concerns.  

While this is not the place for an in-depth discussion of these issues, I-129 filers must now be aware of the general outlines of export restrictions in order to make a baseline determination of whether they may be subject to ITAR/EAR licensing requirements, how and what to document for compliance, and if necessary, so as to be better prepared to approach the license application process.

Another set of expressed export and international trade restrictions is contained in the U.S. Treasury’s Office of Foreign Assets Control (OFAC) prohibitions against the provision of services to countries subject to US sanction programs, boycotts, etc. without a license.  The OFAC prohibitions may impose a comprehensive ban on service provision that includes services associated with IT-BPO, and other business and technology services, even if there is no direct or dual-use military application.  In some instances, the OFAC ban extends to:

Conducting surveys and interviews in boycotted countries

Providing marketing & business services to persons in boycotted countries  

Creating new information materials at the behest of persons in a boycotted country

Engaging the services of persons in a boycotted country to develop new information materials

There are a number of countries currently under Treasury boycotts of various types, which include (but are not limited to):

    Cuba, Iran, Iraq, Libya, Liberia, Sudan, Syria, North Korea

NOTE:  The restrictions on provisions of goods and services to some boycotted countries can be thorough-going and applies to foreign business units of U.S. companies.

            See, OFAC website for specific restrictions, and license requirements, which vary depending upon the country:

http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml

        OFAC Sanctions Programs 

Program Abbreviation 

Program Last Updated:

    Balkans-related Sanctions

[BALKANS]

06/22/2010

    Belarus Sanctions

[BELARUS]

05/19/2010

    Burma Sanctions

[BURMA]

09/10/2010

    Cote d’Ivoire (Ivory Coast)-related Sanctions

[COTED]

04/13/2009

    Counter Narcotics Trafficking Sanctions

[SDNT] ; [SDNTK]

10/26/2010

    Counter Terrorism Sanctions

[SDGT] ; [FTO] ; [SDT]

11/04/2010

    Cuba Sanctions

[CUBA]

10/13/2010

    Democratic Republic of the Congo-related Sanctions

[DRCONGO]

06/24/2010

    Diamond Trading Sanctions

NONE

05/21/2008

    Iran Sanctions

[IRAN] ; [IRGC] ; [IFSR] ; [IRAN-HR]

09/29/2010

    Iraq-related Sanctions

[IRAQ]

09/13/2010

    Former Liberian Regime of Charles Taylor Sanctions

[LIBERIA]

05/23/2007

    Lebanon-related Sanctions

[LEBANON]

07/30/2010

    Non-proliferation Sanctions

[NPWMD]

10/27/2010

    North Korea Sanctions

[NORTH KOREA] ; [DPRK]

11/04/2010

    Somalia Sanctions

[SOMALIA]

11/03/2010

    Sudan Sanctions

[SUDAN] ; [DARFUR]

10/20/2010

    Syria Sanctions

[SYRIA]

07/10/2008

    Zimbabwe Sanctions

[ZIMBABWE]

11/25/2008

The general ground rule for what constitutes a “defense article” or “defense service” is spelled out in ITAR §120.3, Policy on designating and determining defense articles and services:

An article or service may be designated or determined in the future to be a defense article (see §120.6) or defense service (see §120.9) if it:

(a) Is specifically designed, developed, configured, adapted, or modified for a military application, and

(i) Does not have predominant civil applications, and

(ii) Does not have performance equivalent (defined by form, fit and function) to those of an article or service used for civil applications; or

(b) Is specifically designed, developed, configured, adapted, or modified for a military application, and has significant military or intelligence applicability such that control under this subchapter is necessary.

The intended use of the article or service after its export (i.e. , for a military or civilian purpose) is not relevant in determining whether the article or service is subject to the controls of this subchapter. Any item covered by the U.S. Munitions List must be within the categories of the U.S. Munitions List. The scope of the U.S. Munitions List shall be changed only by amendments made pursuant to section 38 of the Arms Export Control Act (22 U.S.C. 2778).

  The list of such restricted items appears in the United States Munitions List (USML), used by the DDTC.  These range from relatively commonplace military items such as night-vision goggles, body armor and sniper scopes to satellite guidance systems to chemical, bio-warfare and nuclear weapons components and technologies.

In addition, the Commerce Department’s Bureau of Industry and Security (BIS)  maintains its own Commercial Control List (CCL) (see Section 2, below).  That list is very long, and includes many items that may not have readily apparent military application.

Of particular concern to some readers in the Information Technology industry are restrictions on exports of certain types and services of software and systems applications that have military or dual-use.   Also of concern is the fact that transfer of these items can occur in the United States without actual export, a violation of “deemed export” restrictions.  Technology or source code is considered to be exported not only under the traditional sense of shipping it overseas; an export of technology or source code can also be "deemed" to take place when it is released to a foreign national within the United States or put on a network to which non-US persons may have access. Deemed exports must be authorized through an export license issued by the responsible Government agency.

The regulations also impose controls and penalties on re-export or re-transfer by third parties, such as customers who may have purchased such items under license in the past and then attempt to transfer them to embargoed or sanctioned nationals.   U.S. firms have been prosecuted for such arms-length transactions, as well as for violations by foreign affiliates.[See, e.g., http://pmddtc.state.gov/compliance/consent_agreements/Qioptiq.html; http://pmddtc.state.gov/compliance/consent_agreements/pdf/GeneralMotorsCorp_DraftChargingLetter.pdf; http://www.exportlawblog.com/archives/442]

In general, if the petitioner is a defense subcontractor or involved in the supply chain of “dual-use” items which must be ITAR/EAR compliant, that requirement will be spelled out in the contract with the prime contractor.  The contract will state that the subcontractor must be “ITAR Compliant” and/or “EAR Compliant.”  If there is no such clause, one may assume that these licensure requirements do not apply as a result of a contracting relationship with a federal prime contractor. 

However, this new I-129 attestation imposes an affirmative obligation on all petitioners to make the determination of whether they are subject to export license requirements, and to document how and when it was made prior to filing the petition.

             First, if the petitioning employer deals with sensitive military technology, it must obtain a license for the DOS Directorate of Defense Trade Controls (DDTC) and attest that it is protecting that information from disclosure to non-U.S. persons. 

That company must also take certain steps to safeguard classified or sensitive data and technologies as well as to insure that its components suppliers and supply-chain providers of technologies that have a “primary military use”, or potential dual-use such as some aerospace and biological technologies, are also compliant with the relevant regulations. 

That imposes an affirmative obligation on any U.S. federal military/aerospace/biotech prime contractor to ascertain that its subcontractors and strategic partners that provide such supply-chain components or technologies are indeed compliant.   In order to lawfully produce and export militarily sensitive goods or services, subcontractors must also be compliant with relevant federal regulations.